Supreme Politics: Jeffrey Toobin on the Supreme Court

By |February 5, 2010

CNN analyst and New Yorker staff writer Jeffrey Toobin delivered the keynote address at this past week’s 5th annual John Jay/Harry Frank Guggenheim Journalism Awards luncheon. He spoke afterwards with The Crime Report’s West Coast Bureau Chief, Joe Domanick about his prizewinning 2007 book, The Nine: Inside the Secret World of the Supreme Court, the state of criminal justice journalism and other matters.

The Crime Report: What was the most useful thing you took away from writing The Nine?

Jeffrey Toobin: I think it was the recognition that the Supreme is a political body almost as much as the Congress or the executive branch – that it is as affected by and responsive to the politics of the day.

TCR: Wasn't that just a conformation of something that seems pretty obvious?

Toobin: It's one thing to have an opinion, it's another to have an opinion backed up by reporting. So sure I had a certain understanding of the nature of the Court when I started working on The Nine. But the degree to which politics was part of the court was an important [insight] for me.

TCR: And what do you think was the most revealing proof of that?

Toobin: Bush v. Gore [the 2000, 5-4 Supreme Court decision in 2000 that awarded the U.S. presidency to George W. Bush.] Bush v. Gore is a dark moment in the history of the Court – the fact that they [even] took the case, the way that they treated it, the [political/ideological] way the votes lined up, the way the decision was written, all of that reflected very badly on the Court.

TCR: Were you surprised by the Court's 2003, 5-4 decision, ruling that California's [harsh] three strikes law was not an eighth amendment violation against cruel and unusual punishment?

Toobin: In the current Court you can't be surprised by any 5-4 decision. There has never been – and I think it's fair to use the superlative here – a more polarized 4-4 Court, with one justice holding as much power as does Justice Kennedy. In almost every politically contentious issue you're going to have a 5-4 vote with Anthony Kennedy deciding the outcome.

TCR: Nevertheless, I was very surprised by that decision [in which, in two separate cases, the Court upheld three-strike mandatory 25-year-to-life sentences for shoplifting.]

Toobin: Remember, [Justice] Clarence Thomas essentially believes there is no such thing as cruel and unusual punishment. This a Court that is very tough on criminals.

TCR: What do you think the public most needs to know about the American criminal justice system?

Toobin: One of the most interesting developments in recent years is the decline in public support for the death penalty. And I think that's an example of the public's response to real facts — there's less crime, which is clearly evident to virtually everyone, and DNA has shown there are innocent people on death row. The decline of crime and the work of the Innocence Project and others has had a profound, and I think a good effect on how people look at criminal justice.

TCR: What do you think criminal justice reporters frequently get wrong?

Toobin: I'm not a huge journalism critic. But snap judgments are almost invariably a mistake. I looked back with great worry at the transcripts of my performance in the Duke [University] Lacrosse [team's alleged gang-rape case, in which the charges were proved unfounded.] And I was surprised that I didn't pre-judge that case. But I think that so many of us fit criminal justice stories into narratives that we already have in our heads, and that we really have to stop ourselves and remember to look at the evidence. Everybody has been so anxious to see people prosecuted in connection with Michael Jackson's death – especially his doctor. Whatever else the Los Angeles DA (office) has done, it's done the right thing in taking its time in making a decision.

Ed Note: A list of the winners of the 2010 John Jay Award for Excellence in Criminal Justice Reporting, and their winning entries is available here.

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